CHARLES D. SWIFT (D.C. ID No. 987353) [email protected]CHRISTINA A. JUMP (D.C. ID No. TX151) [email protected]Constitutional Law Center for Muslims in America (CLCMA) 833 E. Arapaho Rd., Ste. 102 Richardson, TX 75081 Tel: (972) 914-2507; Fax: (972) 692-7454 Attorneys for Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA AHMED ALI MUTHANA, individually, and as next friend of Hoda Muthana and Minor John Doe [initials A.M.] 133 Pine Rock Lane, Hoover, AL 35226 Plaintiff/Petitioner, vs. Michael Pompeo, in his official capacity as Secretary of the Department of State, whose official address is 2201 C St., NW Washington, DC 20520; Donald J. Trump, in his official capacity as President of the United States; and William Pelham Barr in his official capacity as Attorney General. Defendants/Respondents. Cause No. _______ CIVIL ACTION EXPEDITED COMPLAINT FOR DECLARATORY JUDGMENT, INJUNCTIVE RELIEF AND PETITION FOR WRIT OF MANDAMUS Case 1:19-cv-00445 Document 1 Filed 02/21/19 Page 1 of 32
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IN THE UNITED STATES DISTRICTmedia.fox13news.com/media.fox13news.com/document_dev/2019/0… · Case 1:19-cv-00445 Document 1 Filed 02/21/19 Page 1 of 32. 2 Plaintiff Ahmed Ali Muthana,
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103. Article 2 of that Convention specifies that it “shall apply to all cases of declared
war or of any other armed conflict which may arise between two or more of the High Contracting
Parties, even if the state of war is not recognized by one of them.”16
104. Since 2011, “fighting in Syria has killed an estimated 465,000 people, injured more
than one million, and forced about 12 million people - or half the country's pre-war population -
from their homes.”17 Although the degree of involvement of each of the parties presently in Syria
has shifted over time, the fact remains that there are still several conflicting international forces at
play within the Syrian border, including Israel, government forces backed by Russia and Iran,
Turkey, Kurdish forces, Syrian rebel groups, and Syrian forces loyal to Assad.18
105. Over 130 countries have signed the Geneva Convention, including Syria, Iran,
Turkey, Russia and the United States, all of whom have taken part in the Syrian conflict;
accordingly, this conflict falls within the contemplated international scope of the Geneva
Conventions.
106. In addition to other relevant articles of the Convention, Article 48 of the Fourth
Geneva Convention specifically addresses how aliens in occupied territories are to be treated
during times of conflict, stating that “protected persons who are not nationals of the Power whose
territory is occupied, may avail themselves of the right to leave the territory subject to the
provisions of Article 35, and decisions thereon shall be taken according to the procedure which
the Occupying Power shall establish in accordance with the said article.”19
16 Id. 17 See https://www.aljazeera.com/indepth/interactive/2015/05/syria-country-divided-
150529144229467.html for a breakdown of where and who is currently occupying Syria. 18 https://www.bloomberg.com/news/articles/2019-01-14/who-s-still-fighting-in-the-syrian-war-
and-why-quicktake-jqwig5e7. 19 Article 35, in relevant part, states that “all protected persons who may desire to leave the territory
at the outset of, or during a conflict, shall be entitled to do so, unless their departure is contrary to
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107. Mr. Muthana’s daughter and grandson qualify as protected persons under the
definition contained in Article 4 of the Fourth Geneva Convention, which states that “persons
protected by the Convention are those who at a given moment and in any manner whatsoever, find
themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying
Power of which they are not nationals.”20
108. The United States Supreme Court has previously acknowledged the legitimacy of
invoking the Geneva Convention in order to challenge wartime conduct and sustain fundamental
liberties. See Hamdan v. Rumsfeld, 548 U.S. 557, 126 S.Ct. 2749, 164 L.Ed. 2d 723 (2006)
(recognizing that it is permissible for an alien to invoke the Geneva Conventions in order to
challenge procedures used by military commissions during his criminal trial).
109. Although Mr. Muthana’s daughter has at times been in the company of ISIS fighters
and present in ISIS-controlled territory, there is no evidence to suggest that she has taken part in
any armed combat or hostilities.
110. There is no evidence, nor can there conceivably be any evidence, that Mr.
Muthana’s minor grandson, who is less than two years old at the time of the filing of this Complaint,
took part in any armed combat or hostilities.
the national interests of the State. The applications of such persons to leave shall be decided in
accordance with regularly established procedures and the decision shall be taken as rapidly as
possible…if any such person is refused permission to leave the territory, he shall be entitled to
have such refusal reconsidered as soon as possible by an appropriate court or administrative board
designated by the Detaining Power for that purpose.”
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111. Neither Mr. Muthana’s daughter nor his grandson is a national of Syria, or any of
the parties to the current conflict taking place on Syrian soil, other than the United States; therefore,
they have the right to safely exit the area of conflict and return to their home country.21, 22
112. On February 4, 2019, the U.S. Department of State published a press release stating
that “the United States calls upon other nations to repatriate and prosecute their citizens detained
by the [Syrian Democratic Forces].”23 Although Mr. Muthana’s daughter and grandson are not
presently detained by the SDF, this demonstrates the United States’ specific policy position on the
repatriation of American citizens who have previously been affiliated with ISIS.
113. Consistent with the United States’ policy position, stated above, Mr. Muthana’s
daughter remains entirely willing to surrender to the United States Department of Syria upon her
return; however, she requires the assistance of her government in securing her own repatriation
and that of her minor son, in accordance with international law and U.S. policy.
114. In addition to International law, American citizens have an absolute right to return
to their home country. See Tuan Anh Nguyen v. I.N.S., 533 U.S. 53, 67, 121 S. Ct. 2053, 2062, 150
L. Ed. 2d 115 (2001) (acknowledging the absolute right of United States citizens to enter its
borders); see also Worthy v. United States, 328 F.2d 386, 394 (5th Cir. 1964) (“We think it is
inherent in the concept of citizenship that the citizen, when absent from the country to which he
owes allegiance, has a right to return, again to set foot on its soil”).
115. Although this right does not in and of itself confer an obligation on the United States
to do more than refrain from obstructing a citizen’s ability to return, when viewed in conjunction
21 See https://www.npr.org/2019/01/17/686207495/how-strong-is-the-islamic-state-in-syria for
an updated overview of the current state of ISIS in Syria (last visited on February 4, 2019). 22 http://www.syrianlawjournal.com/index.php/main-legislation/nationality-law/#l18-1 23 https://www.state.gov/r/pa/prs/ps/2019/02/288735.htm (last visited on February 5, 2019).
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with applicable international humanitarian law and stated U.S. policy, it confers upon the United
States a responsibility proactively preserve the fundamental rights of its citizens.
116. United States citizens possess the fundamental right to return home, and the Geneva
Convention outlines in great detail the right of aliens to leave an occupied area of armed conflict.
As a party to this treaty, the United States therefore has a vested interest in facilitating its
implementation, particularly where the treaty coincides with the safety of its own citizens and the
preservation of their absolute right to return home.
h. Count 9: Ahmed Ali Muthana is entitled to a declaratory judgment, under the
Declaratory Judgment Act, 28 U.S.C. 2201-2202, that he may send money to
ensure the survival of his daughter and grandson, while they secure their return
to the United States, without incurring liability under § 2339B.
117. The facts from the foregoing paragraphs are incorporated herein by reference.
118. Plaintiff Ahmed Ali Muthana respectfully requests a declaration from this Court
that he may send money to his daughter and grandson, in order to ensure their survival, without
committing a violation of § 2339B.
119. Mr. Muthana has an actual controversy, as required by the Declaratory Judgment
Act, because this case involves a substantial and concrete controversy, touches the legal relations
of the parties with adverse interests, and is subject to specific relief through a declaratory judgment.
See Aetna Life Insurance Company v. Haworth, 300 U.S. 227, 240-41 (1937).
120. This Complaint satisfies the requirement for an actual controversy because Mr.
Muthana has been informed by the FBI, during his recent communications with them, that sending
money to his daughter and grandson would constitute material support and a violation of 18 U.S.C.
§ 2339B. See Ex. A, Decl. of Ahmed Ali Muthana.
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121. 18 U.S.C. § 2339B prohibits providing material support or resources to designated
terrorist organizations.24, 25 The statute states, in relevant part, that it is unlawful to “knowingly
provide material support or resources to a foreign terrorist organization, or attempt or conspire to
do so…a person must have knowledge that the organization is a designated terrorist
organization…that the organization has engaged or engages in terrorist activity…or that the
organization has engaged or engages in terrorism.”26
122. The leading case interpreting 18 U.S.C. § 2339B comes from the United States
Supreme Court, in Humanitarian Law Project.27 The plaintiffs in that case were a collective of
advocacy groups that sought to provide the Partiya Karkeran Kurdistan (“PKK”) and the
Liberation Tigers of Tamil Eelam (“LTTE”), both designated terrorist organizations, with training
on how to use humanitarian and international law for peaceful conflict resolution, as well as how
to petition the UN for humanitarian relief. 28 The plaintiffs challenged § 2339B as
unconstitutionally vague on its face, under the due process clause of the Fifth Amendment.29 The
Supreme Court ruled against the plaintiffs, finding that those plaintiffs did not concretely
demonstrate the degree to which they might provide material support or resources.30 Specifically,
the Supreme Court held that “with respect to these claims that gradations of fact or charge would
make a difference as to criminal liability, and so adjudication of the reach and constitutionality of
24 18 U.S.C. § 2339B. 25 18 U.S.C. § 2339A is not applicable in this situation because Mr. Muthana seeks only to provide
resources to his daughter to help her and his grandson get home safely, and not to aid in a
conspiracy to damage or destroy property outside the United States. 26 Id. 27 Holder v. Humanitarian Law Project, 561 U.S. 1 (2010). 28 Id. at 10. 29 Id. at 18. 30 Id. at 25.
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the statute must await a concrete fact situation.”31 The holding in Humanitarian Law left the door
open for future fact situations which may not constitute material support under § 2339B, such as
the one in this instant matter.
123. In this case, Mr. Muthana seeks to provide his daughter and grandson with
emergency monetary support in order to ensure their survival, until they can return home.
124. As of January 15, 2019, Ms. Muthana and her son successfully escaped ISIS-
controlled territory in Syria and made their way to Kurdish-controlled lands in northeast Syria,
where they await passage back to the United States.
125. Ms. Muthana has openly and repeatedly disavowed ISIS, and is focused solely on
returning to the United States with her son, to ensure the safety of her young child. Upon
information and belief, she is further willing to surrender to the United States justice system should
the United States deem that necessary.
126. Mr. Muthana has cooperated with the instructions given to him by the FBI; however,
at this time he requests a declaratory judgment finding that, based on the facts of this case, he will
not commit a violation of § 2339B by providing support for his daughter and grandson to return
home.
127. The monetary support Mr. Muthana seeks to provide would solely support his
daughter and his grandson, and would be of no benefit to ISIS, as they are both physically separated
from the group, and are no longer subject to its control.
128. Holding that Mr. Muthana would violate § 2339B by sending money for his
daughter and grandson, for this limited purpose at a location outside the control of ISIS, would
effectively render criminal any attempts to send money overseas to any individuals who had, at
31 Id.
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any point in their past, had contact with a designated terrorist organization in a different geographic
area than where they are when they receive the money at issue. Doing so is inconsistent with the
stated intent of § 2339B, which is “…to provide the Federal Government the fullest possible basis,
consistent with the Constitution, to prevent persons within the United States, or subject to the
jurisdiction of the United States, from providing material support or resources to foreign
organizations that engage in terrorist activities." Id. Here, Mr. Muthana is at no risk of providing
material support or resources to any foreign terrorist organization. There is no logical way that any
funds could be used to engage in any terrorist activities, given the present location of Mr.
Muthana’s daughter and grandson outside of ISIS-controlled territory.
IX. CONCLUSION
For the reasons set forth above, Plaintiff Ahmed Ali Muthana hereby requests that the United
States issue a declaratory judgment finding that he will not be in violation of 2339B if he provides
his daughter and grandson with financial support to aid their survival and return to the United
States. Plaintiff Ahmed Ali Muthana, as Next Friend of his daughter Hoda Muthana and grandson
Minor John Doe, further seeks injunctive relief preventing the United States government from
unconstitutionally robbing them of their rights as United States citizens, as well as a writ of
mandamus instructing the United States government to uphold its duties to these two United States
citizens. Counsel for Plaintiff further respectfully requests this Court find the U.S. government has
an obligation to assist in the return of its citizens from areas of armed conflict, based on U.S. law
regarding the rights of citizenship, applicable international law, and the United States’ own
publically stated policies regarding the repatriation of American citizens. As stated above, upon
her return to the United States, Mr. Muthana’s daughter is prepared and willing to surrender to any
charges the United States Justice Department finds appropriate and necessary; she simply requires
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the assistance of her government in facilitating that return for herself and her young son Minor